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Reviewed by Peter McNamara (Department of Political Science, Utah State University)Published on H-SHEAR (May, 2000)

The Madisonian Founding

The aim of Gary Rosen's study American Compact: James Madison and the Problem of Founding is to "rehabilitate Madison as a constitutional thinker and statesman." To accomplish this goal, Rosen thinks it necessary to do two things: first, to demonstrate the consistency of Madison's "most controversial public acts" and, second, to establish a deeper appreciation of Madison's "originality as a political theorist" (pp. 2-3). It may not have been necessary to set such a high standard for Madison's rehabilitation, if indeed he requires rehabilitation. Nevertheless, this is an important book that significantly deepens our knowledge of both Madison and the Founding.

According to Rosen, we must first come to understand Madison's depth and originality as a political thinker before we can come to see the consistency of his statesmanship. What has stood in the way of such an appreciation has been the tendency of students of the Founding to use "ideological shorthand . . . as a substitute for delving into Madison's theoretical claims" (p. 178). Rosen has in mind the "ideological school" of historians who present the Founding period as a struggle between, on the losing side, a "classical republican" tradition that equated a self-sacrificing idea of virtue with republican citizenship and, on the winning side, the modern forces of individualism and the market or, in short, "liberalism." The powerful and in some ways charming idea of a lost but virtuous past has exercised a wide influence among scholars and political commentators. As Rosen notes, we see versions of it embraced by such disparate social critics as George Will, Robert Bork, and Benjamin Barber. Rosen is at his best showing just how inadequate this framework is for understanding Madison and the Founding. Thomas Pangle, Paul Rahe, Michael Zuckert and others have made this general point before. What makes Rosen's study stand out is his focus on the problematic and critical case of Madison who has been categorized by some scholars as a liberal and by others as a classical republican. Rosen presents convincing evidence to show that Madison was a liberal but, as Rosen hastens to add, Madison's liberalism should not be equated with a "stark world of possessive individuals, utterly indifferent to public things" (p. 5). Liberalism, as Madison understood it, requires a certain version of both virtue and republicanism to sustain itself.

Rosen argues persuasively that we can discover the key for unlocking Madison's thoughts on virtue, republicanism, founding, and constitutional government in his rethinking of the idea of the "social compact." Madison understood the social compact (or social contract, as it tends to be called today) in the liberal manner as it was expounded by Thomas Hobbes and especially by John Locke. The social compact doctrine begins by positing a "state of nature" where free and equal individuals live without any common authority. The precariousness of such an existence compels these individuals to seek the protection of society and government. The social compact that makes this possible takes place in two stages: an initial unanimous decision to form a society is followed by a second stage in which the majority decides on a particular form of government. Free and equal individuals possess rights, one consequence of which is that society and government serve the essentially instrumental role of securing these rights. Although Madison never questioned the idea that civil society exists to secure rights, the practical political situation of an independent America forced him to think seriously not only about the Hobbesian and Lockean accounts of the transition from the state of nature to civil society but also about their basic accounts of human nature. To begin with, the abstract and skeletal nature of the standard accounts left many questions unanswered. For example, neither Hobbes nor Locke suggests just how deliberations about entering society and choosing a government might take place. Nor do they say anything about the kind of peculiar situation in which the newly independent colonies found themselves. The Revolution, to Madison's mind, brought about no simple return to a pure state of nature. The Articles of Confederation were debated and ratified not by individuals newly united in society, but by individuals who were already citizens of states and also members of less defined but nevertheless formidable interest groups.

In addition to gaps in the standard accounts, Madison identified two serious problems or paradoxes. The first paradox or contradiction is inherent in the move from stage one--entering society--to stage two--choosing a government. The motives for making the move from the state of nature to society are widely and more or less equally felt. The insecurity of the state of nature compels us to enter society. But once we come to debate about forms of government, something that is possible only when there is peace, the natural inequalities that give rise to different interests and passions make agreement and even rational debate difficult. Hobbes and Locke were aware of this problem, but Madison thought they had greatly underestimated the threat it posed to establishing good government.

The situation was particularly acute in the new United States. The diversity of interests that would be an advantage for a large republic (as Madison so famously argued in The Federalist, Number 10) was a great obstacle to the establishment of that republic. There was a second paradox or contradiction in the account of choosing a government. Hobbes's and Locke's accounts of the transition seem to suggest that deliberations about forms of government are within the capacities of most citizens. It became increasingly clear to Madison that the people as a whole are simply incapable of making informed choices about such complex and delicate matters.

The solution Madison hit upon was the constitutional convention. Rosen makes an exhaustive analysis of The Federalist, Numbers 37-40 in order to make clear Madison's thinking. Three important points emerge. First, "Madison came to view constitutional conventions as a counterpoint to the people and to popular political institutions, as an opportunity to transcend sovereign pride and narrow interest" (p. 71). More precisely, "the Convention was not simply a substitute for the unwieldy deliberation of the people as a whole; it represents a qualitatively distinct form of political intelligence" (p. 72). Rosen points to Madison's high praise of the participants at the Constitutional Convention. The actions of these "constitution-making gentleman" (p. 83), as Rosen calls them, deserve to be put on a level with or, perhaps, even above the actions of the great lawgivers of antiquity. Second, the greatest tasks before the convention required that the participants exercise "prudence." Rosen describes Madison's prudence in Aristotelian terms as the intellectual virtue that is connected with the choice of means to certain moral ends. Prudence operates as the critical supplement to theory or scientific knowledge. However much Madison and his colleagues may have learned from political philosophers, the crucial choices facing the Convention involved not theory per se but the application of theories to the America situation. These choices, according to Rosen, were not simply technical questions. Whatever course the Convention took, it had to comport with the moral end in view, namely, "the republican view of justice--that is, to the claims of the people to self-government" (p. 97). Rosen's third claim about the Madisonian understanding of Founding follows from this last point. The "extraordinary" Constitutional Convention, which brought together a prudent few who on tenuous authority chose to deliberate without restrictions and in secret, could not serve as the model for everyday politics. Like Sparta's Lycurgus, the Convention would have to cease with the making of its recommendations and have no authority under the regime it devised (see p. 112). The theory of the Madisonian Founding emerges as a complex blending of the claims of the few and the many whose efforts must be encouraged and resisted in precisely the right amounts. Specifically, the just but controversial claims of the prudent few must be balanced against the people's capacity for and claims to self-government. Madison thought this could be done by allowing for a (more or less) popular ratification of the Constitution and by allowing the people to participate in the operations of the government so established. Rosen argues that we ought to see Madison's assertion that the ratification process fixed the meaning of the Constitution in decisive respects--its broad outlines and limits, in particular--as part of Madison's effort to honor the people's right to self-government.

In unfolding Madison's complex idea of founding, Rosen clarifies a number of important elements of Madison's thought that have vexed those attempting to classify him using the classical republican-liberal framework. First, "like other members of the founding generation, [Madison] saw Hume and Montesquieu primarily as political scientists, authorities to be consulted on the instruments of government but not its origins and ends" (pp. 108-9).

Madison never was or became a "conservative." He remained a Lockean liberal. Second, Madison's dedication to republican government was derived from the principles of the social compact. Locke and especially Hobbes avoided what Madison saw as this necessary implication of the social compact. Somehow Hobbes thought that the pride that would inevitably arise when the people took charge of their political destiny could simply be extinguished for the sake of social peace. Madison understood that such pride would have to be accommodated. Third, there is no incompatibility between Madison's liberalism and his frequent claim that virtue is a prerequisite for republican government. Madison understood virtue in the modern way as a thing necessary for the accomplishment of liberal ends rather than for the perfection of the soul. Liberal virtue, so to speak, resembles a particular kind of "public virtue," the virtue appropriate to a particular regime (pp. 54-55). Virtue and republican pride are connected: "Virtue would seem to depend on the pride that human beings take in overcoming their justifiable wariness of one another and on finding a means other than absolute government to restrain themselves. It enhances their self-regard because it shows them to be capable of maintaining something of their natural equality without a constant reliance on fear" (p. 57). By showing how Madison brought liberalism, virtue, and republicanism together, Rosen demonstrates that rather than being part of the problem or a mere "backward-looking historical curiosity" (p. 179), Madison's social compact theory directly engages today's debates among liberals, conservatives, "strong democracy" theorists, and communitarians.

Rosen's account of the way in which Madison brought "new realism and practicality" (p. 124) to the idea of the social compact more than makes good on his promise to show Madison's originality as a political theorist. Yet, there are problems with other parts of his argument that bear on his promises to show Madison's consistency and to rehabilitate his reputation. These problems are particularly evident in his fast-moving chapters dealing with Jefferson and Hamilton, Madison's Presidency, and the Madisonian "regime" today. Let me begin though with a relatively small point, namely, Rosen's account of prudence. Rather than turning to Aristotle to develop his argument, he might just as easily have turned to Hume or especially Montesquieu's account of "moderation." The artful balancing of competing fundamental priorities such as liberty and stability that Madison and other participants at the Convention were forced to engage in sounds much like the "moderation" that Montesquieu ascribes to the "legislator" in the Spirit of the Laws (see especially Book 29, Chapter 1; on the kinship between prudence and moderation, see Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke [Chicago: University of Chicago Press, 1988], pp. 89-94.). Viewed in this light, Madison's founding seems more technical or theoretical than aristocratically prudential. It might be the case that, notwithstanding the high-flown rhetoric of The Federalist Number 38, Madisonian prudence occupies something of a gray area between Montesquieuian moderation and Aristotelian prudence.

Second, and more importantly, Rosen's account tends to collapse the distinction between Framers (those who took part in the Constitutional Convention) and Founders (those who may or may not have been in Philadelphia, but who nevertheless played an important part in the creation of the Republic). Thomas Jefferson and John Adams, to name two very important examples, were Founders, but not Framers, strictly speaking. Rosen and his Madison reduce the Founding to a Founding "moment" (p. 127) apparently stretching from the Convention to Ratification. This view goes along with Rosen's disinterest in Madison's substantial role in the policy disputes and the debates about the how the "superstructure" of the new government would operate during the 1790s. Rosen's general argument here owes much to Martin Diamond (see pp. 81-82, 114), who held that there is a great disjunction between the politics of the Founding and the kind of politics that follows it. Post-founding politics is system politics or, to be precise, the politics of a "disinterested system" (p. 70) in which the pursuit of interest is rendered safe by means of clever institutional design. The real issue is, according to Rosen, who establishes the disinterested system. This may have been Madison's view, but, granting that it was for the moment, is it an accurate view of the Founding and at least some of the politics that has followed it? The Presidencies of Washington, Lincoln, and Franklin Roosevelt would seem to suggest otherwise. Rosen notes that Madison was surprised to find that there were still explosive constitutional issues to be settled during Washington's Presidency (see p. 156). To explain this Madison eventually had recourse to the idea of a "aristocratic plot" against republicanism (p. 151). How plausible was this recourse, then or now?

The third respect in which Rosen is less than completely convincing is on the difficult issue of Madison's reputation, especially the consistency of Madison's most controversial public acts. His effort should be placed alongside Lance Banning's The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic (Ithaca, N.Y.: Cornell University Press, 1995). Both make a good case that Madison was never an ardent nationalist like Hamilton. His break with Hamilton was almost predictable and not a surprise, let alone a betrayal. This insight, however, hardly settles the matter. To begin with, Rosen acknowledges that Madison did change course a number of times in his career, sometimes significantly and abruptly (consider the following: cf. p. 33 and p. 71; p. 49; cf. pp. 52-53 and pp.144-45; pp. 169-77). Rosen rightly praises Madison for risking his reputation for the sake of a deeper consistency and fidelity to principle. Historians with the benefit of hindsight might be chastised for failing to see this consistency but, at the very least, we might forgive many of his contemporaries for their outright astonishment at some of his actions. Madison's remarkable turn-around on the issue of "discrimination" among public creditors, which Rosen hardly mentions, would be a case in point.

As noted, Rosen probably wisely chooses the ground of constitutional interpretation rather than debates over policy or the operation of "superstructures" to make his case for Madison's deeper consistency. Rosen makes a good case that Madison was consistent in arguing against the constitutionality of a national bank in the 1790s and then while President not only signing into law the rechartering of the bank but even recommending its rechartering. Madison thought that the bank had been unconstitutional, but twenty years of public discussion, Congressional debate and support, and the continued acquiescence of the states and the nation as a whole had made the Bank constitutional through "precedent." Nevertheless, throughout his career, Rosen argues, Madison remained a strict constructionist. Madison, Rosen speculates, calculated that "Constitutional veneration was more likely to be promoted by granting a degree of legitimacy to the occasional legislative excess" (p. 172). Allowing precedent to constitutionalize the bank was more prudent than the unleashing of a constitutional controversy that might have brought the Constitution into disrepute. (Madison strenuously objected to John Marshall's use of the occasion of McCulloch v. Maryland to give Supreme Court sanction to Hamilton's principle of broad construction of the "necessary and proper" clause.) Remaining faithful to the Constitution as understood at Ratification, Madison resisted the Federalists' attempts to extend indefinitely the period of constitution-making, just as he later resisted popular pressures to expand the government's powers. Rosen gives as an example of Madison's resistance to popular pressure his vetoing of the bonus bill providing for the building of roads and canals. He justified his veto of this popular measure on the grounds that it neither fell within the enumerated powers of Article I, nor was it "necessary and proper." Madison, Rosen suggests, wanted to provide an example of strict constitutional fidelity to offset any appearance of waywardness arising from his support of a national bank. But after having strongly endorsed the utility of nationally sponsored internal improvements, Madison surprisingly refrained from advocating a constitutional amendment to make them possible. Apparently, he was reluctant to make a popular appeal for constitutional change, something Rosen sees as in keeping with his opposition to Jefferson's proposal for frequent constitutional conventions.

Rosen concedes that this decision was "especially regrettable" (p. 176) because it undermined respect for the constitutionally prescribed mode of constitutional change and because it sat uneasily with Madison's endorsement, however qualified, of the extra-constitutional modification of the Constitution through precedent.

Rosen might have pushed this point still further. Madison was hardly alone in holding to a notion of the social compact. Rosen grants that Madison's thought evolved over time and responded to events as they happened. Madison, for example, had no theory of constitutional interpretation (p. 157) when he first confronted Hamilton in the 1790s. Rosen shows how Madison derived one from his notion of the social compact. But was this the only theory compatible with the idea of a social compact? It is one thing to say that Madison had a coherent and distinctive vision of the problem of founding. This does not necessarily mean, however, that he was the only one with such a vision or that his was superior. Rosen points to some real problems with Hamilton's interpretation of the Constitution as granting very broad powers subject to specified exceptions but is it an incoherent interpretation? Is it obviously inferior to Madison's? Madison's muddle over the bonus bill surely raises the question of whether his understanding of the Constitution makes it unfit for dealing with what Hamilton termed the "probable exigencies of ages" ( The Federalist, Number 34). How could such a Constitution achieve the political "immortality" Madison predicted for it in The Federalist, Number 38? One might grant the significance of Rosen's account of how Madison sought to blend the claims of the few and the many in the act of founding. But, as he presents it, the Madisonian Founding turns out to be a somewhat ethereal event, more about words on paper and hallowing those words through precedent, than about the connection of those words to some of the basic tasks of republican government.

These problems with Rosen's argument do not have much impact upon Madison's stature as one of the most important Founders. Rosen's study does add considerably to our understanding of Madison, but as with Hamilton and Jefferson one can acknowledge their roles as Founders without identifying the Founding uniquely with either.

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